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22. Refugee Law

Refugee law in Australia

The Refugee Convention

22.4 Australia
is a signatory to the Refugee Convention, the key international
instrument that regulates the obligations of states to protect refugees fleeing
from persecution. Article 1A(2) defines a refugee as a person who,

owing to well founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is unable or,
owing to such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the country of his
former habitual residence as a result of such events, is unable or, owing to
such fear, is unwilling to return to it.

22.5 The
Migration Act incorporates art 1A(2) of the Refugee Convention into
Australian domestic law, and gives effect to Australia’s obligation of non-refoulement—not
to return a refugee in any manner whatsoever to the frontiers of territories
where the person’s life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or political
opinion.[2]
Section 36(2) provides for the grant of a protection visa to a ‘non-citizen in
Australia to whom the Minister is satisfied Australia has protection
obligations under the Refugees Convention as amended by the Refugees Protocol’.

22.6 The
term ‘persecuted’ in art 1A(2) of the Refugee Convention is qualified by s
91R(1) of the Migration Act, which provides that art 1A(2) does not
apply unless persecution for one or more of the Convention reason(s) is:

the ‘essential and significant reason(s), for the persecution’;
and

the persecution involves ‘serious harm’ to the person; and

the persecution involves ‘systematic and discriminatory conduct’.

22.7 A non-exhaustive list of instances of ‘serious harm’ is provided in
s 91R(2) of the Migration Act, including:

a threat to the person’s life or liberty;

significant physical harassment of the person;

significant physical ill-treatment of the person;

significant economic hardship that threatens the person’s
capacity to subsist; and

denial of capacity to earn a livelihood of any kind, where the
denial threatens the person’s capacity to subsist.

22.8 The
onshore component of Australia’s Refugee and Humanitarian program allows those
who are in Australia to apply for a protection visa.[3]
Primary refugee status determination in Australia is made by a Department of
Immigration and Citizenship (DIAC) officer as a delegate of the Minister for
Immigration and Citizenship. Unsuccessful applicants can seek merits review by
the Refugee Review Tribunal (RRT), and thereafter, judicial review by the
courts. Under s 417 of the Migration Act, the Minister may
personally consider and grant a visa on humanitarian grounds, if he or she
considers it to be in the public interest.[4]
This personal intervention power is only exercisable by the Minister and only
in cases where the applicant has exhausted all avenues of merits review.[5]

Family violence and the
definition of a refugee

22.9 Applicants
who make asylum claims based on family violence have faced difficulties meeting
the definition of ‘refugee’ in art 1A(2) of the Refugee Convention—both
internationally, and in Australia. While it is generally accepted that
instances of family violence can constitute serious harm, two compounding and
interlinking factors have historically excluded victims of family violence from
protection under the Refugee Convention. These are family violence claims in
the context of gender-related persecution and the public/private dichotomy.

Gender-related claims and the public/private dichotomy

22.10 First, family violence
claims have tended to exist within the wider context of gender-specific harm,
including: sexual violence, forced marriage, female genital mutilation and
honour killings.[6]
These types of harms—generally experienced by women—are not afforded protection
because neither gender nor sex is an enumerated Convention ground. Therefore
courts have traditionally failed to consider whether such gender-related claims
may fall under the ground of particular social group, or other Convention
reasons.[7]

22.11 A more problematic
distinction relates to the public/private dichotomy. As Anthea Roberts explained,
the Refugee Convention is primarily aimed at protecting individuals from state
or public forms of persecution, rather than intruding into the private realm of
family life and personal activities.[8]

22.12 This is most evident
in the interpretation of the term ‘persecution’. The Refugee Convention contains
no definition of ‘persecution’.[9]
However, the term is widely recognised as involving a certain relation between
the individual and the state, whereby persecution occurs in the public sphere
and the perpetrators are the state or its agents.[10]
As stated by Gleeson CJ in Minister for Immigration and Multicultural
Affairs v Khawar (Khawar):

the paradigm case of persecution contemplated by the
Convention is persecution by the state itself. Article 1A(2) was primarily,
even if not exclusively, aimed at persecution by a state or its agents on one
of the grounds to which it refers.[11]

22.13 In Applicant A v
Minister for Immigration and Ethnic Affairs, the High Court explained that:

The Convention is primarily concerned to protect those
racial, religious, national, political and social groups who are singled out
and persecuted by or with tacit acceptance of the government of the country
from which they have fled or to which they are unwilling to return. Persecution
by private individuals or groups does not by itself fall within the definition
of refugee unless the State either encourages or appears to be powerless to
prevent that private persecution. The object of the Convention is to provide
refuge for those groups who, having lost the de jure or de facto protection
of their governments, are unwilling to return to the countries of their
nationality.[12]

22.14 As family violence
tends to be perpetrated by non-state actors within private relationships, such
claims have historically been construed as falling outside the bounds of the Refugee
Convention, because the state cannot be implicated in the infliction of that harm.
In Equality Before the Law: Justice for Women (ALRC Report No 69) (Equality
Before the Law), the ALRC observed that:

Sexual violence against women tends to be seen as occurring
in the private rather than public sphere and discounted as persecution ...
Discriminatory practices may also be seen as ‘private’ where they affect family
life. In many cases, most notably in cases of sexual or domestic violence, the
nexus between the individual and the state is generally more complex than in
‘public’ forms of persecution. Difficulties arise as to the exact extent of
state responsibility.[13]

The role of state responsibility

22.15 The issue of state
responsibility in cases where the harm is inflicted by non-state actors for a
non-Convention reason, was clarified by the landmark decision of the High Court
in Khawar.[14]

22.16 In Khawar, the
applicant, Ms Khawar, fled Pakistan to Australia with her three daughters,
after years of escalating abuse from her husband and his family. She claimed
asylum on the basis that the Pakistani authorities (the police) had
systematically discriminated against her by failing to provide her protection
and that this was tolerated and sanctioned by the state. Thus, it was argued
her well-founded fear of persecution was based on the lack of state protection
for reasons of her membership of a particular social group—‘women in Pakistan’.

22.17 Her case was rejected
by the Department of Immigration, Multiculturalism and Ethnic Affairs and the
RRT on the basis that there was no nexus to a Convention ground. The RRT
considered that Ms Khawar was harmed for personal reasons arising from her
marriage and relationship with her husband, and that the Refugee Convention was
not intended to protect people involved in personal disputes. The RRT made no
findings in relation to the failure of the police to provide protection or the
Pakistani state’s attitude towards a particular social group comprised of
women.[15]

22.18 On appeal to the
Federal Court, Branson J found that the RRT had erred in not making findings in
relation to any particular social group of which Ms Khawar might be a member.[16]
As a consequence, the RRT committed a further error in not making any findings
about the lack of state protection in relation to a particular social group of
which Ms Khawar was a member.[17]
The Full Federal Court dismissed an appeal from Branson J’s decision.[18]

22.19 On appeal to the High
Court, two issues were in dispute. These were summarised by Gleeson CJ in the
following terms:

The first issue is whether the failure of a country of
nationality to provide protection against domestic violence to women, in
circumstances where the motivation of the perpetrators of the violence is
private, can result in persecution of the kind referred to in Art 1A(2) of the
Convention.

The second issue is whether women or, for the present
purposes, women in Pakistan may constitute a particular social group within the
meaning of the Convention.[19]

22.20 In separate judgments,
the majority answered both questions in the affirmative. Gleeson CJ held that
persecution may result where the criminal conduct of private individuals is
tolerated or condoned by the state in circumstances where the state has the
duty to provide protection against harm.[20]

22.21 Kirby J adopted the
formula, ‘Persecution = Serious Harm + The Failure of State Protection’,[21]
to find that it was: ‘sufficient that there is both a risk of serious harm to
the applicant from human sources, and a failure on the part of the state to
afford protection that is adequate to protect the human rights and dignity of
the person concerned’.[22]
He considered that ‘persecution’ is a construct of these two separate but
essential elements. McHugh and Gummow JJ found that ‘the persecution in
question lies in the discriminatory inactivity of the State authorities in not
responding to the violence of non-state actors’.[23]

22.22 Although the judgments
took different approaches, the cumulative effect appears to be that, where serious
harm is inflicted by non-state actors for a non-Convention reason, the nexus to
the Refugee Convention is met by the conduct of the state in withholding
protection—in a selective and discriminatory manner—for reasons of a Convention
ground.

22.23 On the issue of
particular social group, McHugh and Gummow JJ held that the evidence supported
a social group, that was, ‘at its narrowest, married women living in a
household which did not include a male blood relation to whom the woman might
look for protection against violence by members of the household’.[24]
Gleeson CJ considered that it was open on the evidence to conclude that ‘women
in Pakistan’ comprise a ‘particular social group’ within the Refugee Convention
ground.[25]

The position of victims of family violence post-Khawar

22.24 While the principle in
Khawar hasallowed family violence claims greater opportunity to
be considered, subsequent cases before the RRT and the Federal Court have
highlighted that such cases remain complex and challenging for decision makers
and applicants alike. In particular, findings of fact as to what comprises a
‘particular social group’, and whether the state has withdrawn protection for a
Convention reason, must be made on a case by case basis, requiring an in-depth
understanding of the applicants’ claims and the country information.[26]

22.25 First, proving that a
state is withdrawing or withholding protection for a Convention reason in a
selective and discriminatory manner may be particularly difficult for those
asylum seekers facing language barriers, lack of legal representation or access
to current country information.[27]
The courts have made it clear that, where the state is unable to provide
effective protection for reasons of maladministration, incompetence or
ineptitude, ‘that would not convert the personally-motivated domestic violence
into persecution on one of the grounds set out in Article 1A(2)’.[28]
In such cases, those who are victims of family violence have no recourse to
protection under the Refugee Convention.

22.26 Secondly, much depends
on how an applicant argues that he or she is member of a particular social
group. In each instance, it is for the applicant to present the case to the
decision maker. Claims that define the particular social group too broadly risk
a finding that the harm feared is not motivated by their membership of that
particular social group. On the other hand, claims that define the particular
social group too narrowly risk a finding that the group is impermissibly
defined by the harm feared.[29]

22.27 Decision makers also
face challenges in making consistent decisions. For example, the consideration
of whether the applicant is a member of a particular social group is dependent
on the cultural, legal, social and religious factors that must be properly
understood. Decisions about whether a victim of family violence can access
‘effective state protection’ therefore depends on access to current and up-to-date
country information. As Gleeson CJ emphasised in Khawar:

An Australian court or tribunal would need to be
well-informed about the relevant facts and circumstances, including cultural
conditions, before reaching a conclusion that what occurs in another country
amounts to persecution by reason of the attitudes of the authorities to the
behaviour of private individuals; but if, after due care, such a conclusion is
reached, then there is no reason for hesitating to give effect to it.[30]

Legislative response to Khawar

22.28 Section 91R of the Migration
Act, set out above, was inserted in response to concern that decisions such
as Khawar had widened the application of the Refugee Convention ‘beyond
the bounds intended’.[31]
Consequently, commentators have argued that s 91R has made it more difficult to
sustain claims for protection on family violence grounds.

22.29 Section 91R(1)
requires the applicant to show that the Convention reason is ‘the essential and
significant reason’ for the persecution.[32]
Catherine Hunter argues that, in the context of gender-related claims, the
‘essential and significant’ requirement will mean decision makers are likely to
focus on aspects other than gender, until gender-related decisions are no
longer controversial.[33]
This concern is echoed by Leanne McKay, who states that applicants have
‘difficulty articulating their claims in asylum terms that are assessable by
decision-makers due to shame or fear’[34]
and, therefore,

due to the restrictive terminology of s 91R ... there is now
a risk that certain Refugee Convention reasons may not be identified or
adequately addressed, resulting in legitimate claims going unrecognised.[35]

22.30 Others have criticised
the definition of persecution under s 91R(2) of the Migration Act for
its failure explicitly to recognise psychological harm as serious harm, and the
impact that this may have for victims of sexual violence and abuse.[36]
In particular, such victims can experience serious psychological trauma even where
there are minimal physical injuries.[37]
Another concern is that s 91R(2) makes no reference to the failure of state
protection as being an element of persecution and thus appears to direct
decision makers towards cases where persecution emanates from the state.[38]

Submissions and consultations

22.31 In the Issues Paper, Family
Violence and Commonwealth Laws—Immigration Law, ALRC Issues Paper 37 (2011)
(the Migration Issues Paper), the ALRC asked what, if any, legislative
amendments are necessary to the Migration Act 1958 (Cth) to ensure the
safety of those seeking protection in Australia as victims of family violence.[39]

22.32 Submissions that
addressed this question expressed concern that the definition of ‘serious harm’
under s 91R of the Migration Act did not specifically address the
experiences of victims of family violence.[40]
Some submissions called for amendments to s 91R specifically to recognise
gender-based claims,[41]
and to recognise that ‘serious harm’ may include family violence coupled with
the lack of state protection.[42]
In a joint submission, Domestic Violence Victoria and others submitted that:

The definition of ‘serious harm’ under s 91R(2) of the Migration
Act provides a non exhaustive list of instances which may be considered
serious harm. Gender based persecution can be read into several aspects of the
s 91R(2) definition, however there remain barriers to decision makers doing so.
In these circumstances given the particular vulnerability of women seeking
asylum and the particular difficulties they face in doing so, the definition of
serious harm under s 91R(2) should be expanded to explicitly include gender
based persecution.[43]

22.33 In contrast, the
Migration and Refugee Review Tribunal were of the view that no legislative changes
were necessary, as family violence claims are covered where serious harm is
inflicted for reasons of membership of a particular social group, including
harm inflicted through selective withholding of state protection:

Decisions on whether harm suffered for reasons of membership
of a particular social group will necessarily differ from case to case, as the
definition of a refugee requires consideration of the individual circumstances
of each case. This includes consideration of whether the postulated social
group constitutes a ‘particular social group’ in the particular context.
Although, as the Issues Paper notes, section 91R of the Migration Act 1958
does not expressly acknowledge either psychological harm or the capacity of a
failure of state protection to constitute persecution, these are well established
in Australian law as being sufficient to meet the definition of a refugee. In
the Tribunal’s view legislative changes are not necessary to enable the
potential recognition of persons fleeing family violence.[44]

22.34 In the joint
submission from Domestic Violence Victoria and others, the Asylum Seeker
Resource Centre (ASRC) stated that it had often observed a lack of consistency
in decision making at DIAC and RRT stages, and argued that this could be
remedied through the adoption of gender guidelines in the Migration Act
and Migration Regulations:

The ASRC has often observed a lack of consistency in decision
making at DIAC and at the RRT. Decisions on gender related claims for women in
very similar situations from the same country are often different depending on
the decision maker. Whilst we commend the Department of Immigration and the
Refugee Review Tribunal for creating gender and vulnerability guidelines which
are useful for the treatment of gender related claims, these guidelines are
rarely applied in practice, particularly by delegates of the Minister for
Immigration and Citizenship.

... Given the rarity with which these guidelines are applied
in practice, particularly at the DIAC stage, it is essential that these
guidelines be adopted within the Migration Act and Regulations in
order to mandate consideration of those guidelines in practice and create some
accountability amongst decision makers who fail to do so.[45]

ALRC’s views

22.35 In light of the
decision in Khawar, refugee law in Australia can provide protection for
victims of family violence where there is serious harm, coupled with the
failure of state protection. Section 91R of the Migration Act does not
provide an exhaustive list of types of harm that may constitute ‘serious harm’,
and while it does not expressly acknowledge psychological harm or the failure
of state protection, the ALRC considers that this is well established in
Australian law.

22.36 However, the ALRC is
concerned that, given the complexities in gender-related claims, there is
potential for inconsistency in decision making between different decision
makers. This may derive from lack of sensitivity or knowledge of decision
makers, or a failure properly to consider the gender guidelines when making
decisions. Accordingly, the ALRC considers that there are a number of options
for reform that may assist in improving consistency in decision making and,
ultimately, better protect the safety of victims of family violence.

22.37 First, the ALRC considers
that the gender guidelines made by the RRT and DIAC are particularly useful in
giving context to, and guiding decision makers in the assessment of, family
violence-related claims. The DIAC guidelines, for example, address many particularities
in relation to gender-related claims including:

guidance on the nature of gender-related persecution including,
among other things, that such persecution may include ‘violence against women,
including family and sexual violence such as rape where the state is unwilling
or unable to provide protection’;[46]

sexual violence and harm perpetrated in the ‘private sphere’ or
by non-state agents can also amount to persecution;[47]

where an applicant fails to seek state protection, officers
should investigate why no protection was sought. Where particular types of
violence may be officially condemned or illegal but in practice tolerated by
local authorities, the inability or failure to request protection may indicate
a failure of state protection.[48]

22.38 Secondly, ensuring
that decision makers are sensitive to gender-related claims is another important
measure in improving consistency in decision making and ensuring the safety of
victims of family violence. To this end, the ALRC makes proposals in Chapter 20
in relation to education and training for decision makers about the nature and dynamics
of family violence in the context of migration law. The ALRC envisages that
such training and education could also incorporate the intersection between
refugee law and family violence and the application of the gender guidelines.

22.39 Finally, ensuring that
the guidelines are properly considered by decision makers could be achieved by
way of a Ministerial Direction under s 499 of the Migration Act.[49]
Such directions would be binding on decision makers—at both primary and review
levels—and could require that, in cases of gender-related claims, decision
makers must have due regard to the gender guidelines, either in whole or in
part. The ALRC notes, for example, that similar directions currently exist in
student visa cancellation cases, directing that visa decisions makers—when
deciding whether a breach of the visa condition was due to exceptional
circumstances—must have due regard to a number of factors.[50]

22.40 Overall, requiring
decision makers to have regard to the gender guidelines, complemented by
education and training, will improve consistency and accountability in decision
making with respect to gender-related claims involving family violence, with
better outcomes to ensure the safety of victims of family violence.

Proposal 22–1 The Minister for Immigration and Citizenship should issue a
direction under s 499 of the Migration Act 1958 (Cth) to visa decision
makers to have regard to the Department of Immigration and Citizenship’s Procedures
Advice Manual 3 Gender Guidelines when making refugee status assessments.

[2] The
principle of non-refoulement is enshrined in the Refugee Convention art 33.

[4]Migration Act 1958 (Cth) s 417(1) provides that ‘the Minister may substitute for a decision of the Tribunal under s 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision’.

[6] See A Roberts, ‘Gender and Refugee Law’ (2002) 22 Australian Yearbook of International Law 160, 164 where she draws a distinction between ‘gender-specific harm’ and ‘gender-related claims’. Roberts also notes that, while men can also be victims of family violence, the majority of asylum claims on the basis of being victims of family violence are made by women.

[8] A Roberts, ‘Gender and Refugee Law’ (2002) 22 Australian Yearbook of International Law 160, 161.

[9] Though
as noted above, the term ‘persecution’ is qualified by s 91R of the Migration
Act 1958 (Cth) for the purposes of Australian law.

[10] See, eg,
C Yeo, ‘Agents of the State: When is an Official of the State an Agent of the State?’ (2003) 14 International Journal of Refugee Law 510, 510. The Convention grounds reflected the concerns of the drafters of the Convention to protect those fleeing state based persecution in the aftermath of World War II.

[27] R Bacon and K Booth, ‘Persecution by Omission: Violence by Non-State Actors and the Role of the State under the Refugees Convention in Minister for Immigration and Multicultural Affairs v Khawar’ (2002) 24 Sydney Law Review 584, 600.

[28]Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 [26]. Elsewhere, the Court indicates that a shortage of law enforcement resources will not amount to persecution: [84].

[29] Case law
has established that the common characteristic of a ‘particular social group’
cannot be the harm feared. See eg, R Bacon and K Booth, ‘Persecution by Omission: Violence by Non-State Actors and the Role of the State under the Refugees Convention in Minister for Immigration and Multicultural Affairs v Khawar’ (2002) 24 Sydney Law Review 584, 600, citing Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.

[37] H Crawley, Refugees and Gender: Law and Process (2001), 43; UNHCR Guidelines on International Protection: Gender-related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (2002), UN Doc HCR/GIP/02/01.

[49] The
Minister may give written directions to a person or body having functions or
powers under this Act if the directions are about (a) the performance of those
functions, or (b) the exercise of those powers: Migration Act 1958 (Cth) s 499.

[50] See Department of Immigration and Citizenship, Ministerial Direction No 38 'Guidelines for considering cancellation of student visas for non-compliance with visa condition 8202 (or review of such decisions) and for considering the revocation of automatic cancellation of student visas (or for the review of decisions not to revoke such cancellations)', 19 September 2007.